Citation NR: 9736562
Decision Date: 10/30/97 Archive Date: 11/05/97
DOCKET NO. 97-20 048 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUE
Entitlement to recognition as the veteranís surviving spouse
for purposes of Department of Veterans Affairs benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARINGS ON APPEAL
Appellant and the veteran's daughter
ATTORNEY FOR THE BOARD
Jeffrey M. Blankenship, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1952 until April
1954.
This appeal arises from a May 1996 decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Des Moines,
Iowa.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that she is entitled to recognition as
the veteranís surviving spouse because, while she and the
veteran were divorced in 1982, they entered into a valid
common law marriage thereafter and continued to lived
together until the veteranís death.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. ß 7104 (West 1991 & Supp.
1997), has reviewed and considered all of the evidence and
material of record in the claims file. Based on its review
of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board
that the record supports the appellantís claim for
recognition as the veteranís surviving spouse for purposes of
VA benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellantís claim has been obtained by the
RO.
2. The appellant and the veteran were married in 1978. They
were divorced in 1982.
3. After their divorce, the appellant and the veteran
continued residing together in the State of Iowa and
continued to reside together during the remainder of the
veteranís lifetime.
4. The evidence does not establish that the appellant and
the veteran underwent a valid marriage ceremony at any time
after their divorce in 1982.
5. The veteran and the appellant had a mutual agreement to
be married while continuously residing together and they held
themselves out as husband and wife in their community.
6. The requirements for a valid common law marriage between
the appellant and the veteran have been met; the test of
continuous cohabitation has also been met.
CONCLUSION OF LAW
The appellant is entitled to recognition as the veteranís
surviving spouse for purposes of VA benefits. 38 U.S.C.A.
ßß 101, 103, 5107 (West 1991); 38 C.F.R. ßß 3.1, 3.50, 3.205
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking recognition as the veteranís
surviving spouse for purposes of VA benefits. After
reviewing the record, the Board finds that her claim is
plausible; therefore, it is well grounded within the meaning
of 38 U.S.C.A. ß 5107(a). The Board is also satisfied that
all relevant facts have been properly developed and no
further assistance is required to comply with the duty to
assist mandated by 38 U.S.C.A. ß 5107(a).
I. Background
A Declaration of Marital Status form submitted by the veteran
in March 1980 stated that he and the appellant were married
in May 1978. A copy of a court order shows that they were
divorced in September 1982.
Various documents submitted by the veteran to VA between 1982
and 1996 stated that the veteran was not married. Most of
these documents also stated that the veteran had no income
from a spouse.
The record shows that, in November 1993, an anonymous caller
reported that the veteran had been working for a number of
years and not reporting it. A field examination was
requested. Memorandums dated in December 1993 and April 1994
indicate that the investigator interviewed some of the
veteranís neighbors. The memorandums show that neighbors who
reported knowing the veteran well stated that he lived with
his wife, the appellant. It was also indicated that a review
by the investigator of the veteranís VA medical records
revealed a November 1988 treatment note in which the veteran
had referred to his wife and that a health care worker had
categorized the veteran as a married person.
The record also includes a report of contact, dated in late
December 1993, describing a contact with the veteran in which
he reported he had been told by neighbors that VA was
investigating him. He said that VA could contact him
directly. The veteran was requested by VA to complete
various documents relating to his income and marital status.
The responses from the veteran show he reported that he and
the appellant were not married, but were living together as
friends and that he paid for room and board. However, on an
Eligibility Verification Report (EVR) form, submitted in May
1994, while it was indicated that the veteran was not
married, income for a spouse was listed. On another EVR,
dated in June 1994, while the box indicating that the veteran
was not married was checked, income and a Social Security
number were listed for his spouse. The Social Security
number was the appellantís. This form was apparently signed
by both the veteran and the appellant.
The veteranís death certificate reflects that he died at a VA
medical center in March 1996. It was reported on the death
certificate that he was divorced. The informant for this
information was listed as VA medical center records.
An application for burial benefits was submitted by a funeral
home in April 1996. It was indicated that the appellant had
authorized the services and that she was the veteranís wife.
An application for a United States flag for burial purposes
was received in April 1996. The form was completed by a
funeral director and states that the person entitled to
receive the flag was the appellant, who was listed as the
veteranís wife.
The appellant submitted an application for VA benefits in
April 1996 claiming she was the surviving spouse of the
veteran. Numerous documents were submitted in support of her
claim.
A supporting statement regarding marriage, dated in March
1996, was completed by the appellantís daughter. It stated
that she considered the veteran and the appellant to be
husband and wife, that they were generally known as husband
and wife, that neither ever denied the marriage, and that she
heard them refer to each other as husband and wife.
A supporting statement regarding marriage, also dated in
March 1996, was completed by the veteranís daughter. It too
stated that she considered the veteran and the appellant to
be husband and wife, that they were generally known as
husband and wife, that neither ever denied the marriage, and
that she heard them refer to each other as husband and wife.
On a statement of marital relationship, submitted by the
appellant in April 1996, the appellant indicated that she and
the veteran began living as husband and wife in 1978 and
lived together continuously from that time until the
veteranís death. It was noted that the veteran moved out for
a short period of time in 1989, but no mention of a divorce
was reported.
Insurance policies show that the veteran and the appellant
jointly insured two automobiles in 1994. A single address
was listed as their address.
A security agreement shows that the veteran and the appellant
were joint borrowers on an automobile loan in 1993 and,
again, a single address was listed for both.
An undated statement from one of the veteranís daughters
describes the veteranís treatment he received prior to his
death. The statement refers to the appellant as the
veteranís wife.
At a personal hearing in September 1996, the appellant and
the veteranís daughter testified concerning the relationship
between the appellant and the veteran. It was reported that
they had automobiles and a mobile home insured in both their
names. It was also noted that VA treatment records prior to
the veteranís death referred to him living with his wife and
referred to the appellant as his wife. The appellant also
received a Social Security Administration burial payment as
the wife of the veteran. The veteranís daughter testified
that the veteran always introduced and referred to the
appellant as his wife and that on a trip to Texas they had
slept together. The veteranís daughter stated that she never
recalled a time when the veteran did not refer to the
appellant as his wife.
The following documents and statements from various
individuals concerning the relationship between the veteran
and appellant were submitted at the hearing:
VA records include a consent form signed by the veteran in
November 1988 that lists the appellant as his wife and VA
medical records showing that the veteran was hospitalized in
March 1996. The admission records show that he lived at home
with his wife and that his support systems included his wife
and family. The appellant was listed as a contact person and
her relationship to the veteran was listed as his wife. A
subsequent note indicates that the veteran left the ward with
his wife.
A newspaper obituary, dated in March 1996, reporting the
veteranís death and states that he was survived by his wife,
the appellant.
A statement, dated in May 1996, from an acquaintance who
stated that she had known the veteran and the appellant since
1978 and that they lived together as man and wife prior to
his death and resided at the same address together.
A May 1996 statement from a minister regarding the marital
status of the veteran was submitted. It states that the
minister delivered pastoral care to the family of the veteran
during his illness and presided at his memorial service. In
the ministerís opinion, the appellant made appropriate and
informed decisions based on his wishes and those of his
children and she accepted financial responsibility for those
plans. In other words, she acted in every way as his wife
and long term companion. It further stated that the
appellantís grief was that of a life partner and her
relationships with his children were appropriate to a person
who had served as their parent/mentor and friend over a long
period of time.
Another statement from an acquaintance, dated in May 1996,
reporting that the veteran and the appellant visited in 1979
as a married couple. The acquaintance stated that she, the
veteran, and the appellant had corresponded and visited each
otherís homes many times since then and that she never knew
that they had gotten a divorce.
A statement from another acquaintance, dated in May 1996,
stating that the veteran and the appellant went back together
after their divorce and lived together as man and wife. It
was noted that they had a good marriage and enjoyed many
things together and that the friend always felt welcome in
their home.
A May 1996 statement from one of the veteranís daughters
describing how the veteran and the appellant had remained
together as man and wife following their divorce. The
daughter stated that, when she visited the veteran and
appellant, they slept together in the next room, that her
father referred to the appellant as his wife, that she
introduced the appellant as her fatherís wife, and that after
her fatherís death someone at the hospital had the appellant
sign papers as the veteranís wife.
A statement from a former wife of the veteran, dated in June
1996, reflects that the veteran and the appellant lived
together for the past 17 years and that they had always lived
together as husband and wife until the veteranís death. She
also described the veteranís devotion to the appellant.
A June 1996 statement from the landlord of the veteran and
the appellant reflects that they were tenants since 1986 and
that both paid the rent and that they continuously lived
together until the veteranís death.
A July 1996 statement from another of the veteranís daughters
indicates that despite their divorce the veteran and
appellant lived together, he introduced and referred to the
appellant as his wife, and they slept together. She
indicated that the appellant treated the veteranís children
and relatives as her own and cared for the veteran during his
illness.
A copy of a United States Treasury check, dated in July 1996,
reflects that the appellant received payment from the Social
Security Administration for insurance.
An undated statement from the veteranís uncle stating that
the veteran told him in their last conversation that he
wanted the appellant to have everything that was available to
her.
At a video hearing before a member of the Board in July 1997,
the appellant and the veteranís daughter again testified that
the Social Security Administration had awarded the appellant
a death benefit as the veteranís wife. The appellantís
representative noted that, despite the veteranís
representation to VA concerning his marital status, VA
procedural manuals specify that the statement of one part is
not conclusive. The veteranís daughter stated that the
appellant handled her own money and the veteran handled his,
because the veteran was unable to handle money due to his
addictive personality. He would use his money to drink and
gamble. She also pointed out a United States Court of
Veterans Appeals decision that she felt supported the
appellantís claim. The appellant testified that she and the
veteran filed joint income tax returns together prior to
their divorce, but that the veteran was on disability and did
not make enough to file a tax return after the divorce. She
stated that automobile loans and rental property records,
along with the statement from their landlord and VA treatment
records, indicated that they were husband and wife.
II. Analysis
To be entitled to death benefits as a ďsurviving spouseĒ of a
veteran, the claimant must have been the veteranís spouse at
the time of the veteranís death and have lived continuously
with the veteran from the date of their marriage to the date
of the veteranís death, except where there was a separation
due to the misconduct of, or procured by, the veteran without
the fault of the spouse. 38 U.S.C.A. ß 101(3).
The term ďspouseĒ means a person of the opposite sex who is a
wife or husband. The term ďwifeĒ means a person whose
marriage to the veteran meets the requirements of 38 C.F.R.
ß 3.1(j). 38 C.F.R. ß 3.50(a)(c).
ďMarriageĒ means a marriage valid under the law of the place
where the parties resided at the time of the marriage or the
law of the place where the parties resided when the rights to
benefits accrued. 38 U.S.C.A. ß 103(c); 38 C.F.R. ß 3.1(j).
Marriage is established by one of several types of evidence,
including a copy of the public record of marriage or the
original certificate of marriage. In jurisdictions where
marriages other than by a ceremony are recognized, the
evidence consists of affidavits or certified statements of
one or both parties to the marriage setting forth all of the
facts and circumstances concerning the alleged marriage.
That evidence should be supplemented by affidavits or
certified statements from two or more persons who know as the
result of personal observation the reputed relationship which
existed between the parties to the alleged marriage.
38 C.F.R. ß 3.205(a).
In this case, as noted previously, the record indicates that
the veteran was initially married to the appellant but they
were divorced in 1982. The record further discloses that,
following their divorce in 1982 and until the veteranís
death, the veteran and the appellant continuously resided
together in the State of Iowa, a state that recognizes
common-law marriages. Under Iowa law, ď[t]here are three
elements requisite to a common-law marriage: (1) intent and
agreement in praesenti to be married by both parties; (2)
continuous cohabitation; and (3) public declaration that the
parties are husband and wife.Ē In re Marriage of Winegard,
278 N.W.2d 505 (Iowa 1979) citing In re Marriage of Fisher,
176 N.W.2d 801, 805 (Iowa 1970).
The Supreme Court of Iowa has addressed the issue of what is
needed to show intent to be married. In the Winegard case,
one of the parties to the alleged common law marriage denied
he had the requisite intent to enter into a marital
relationship. The court noted that intent may be shown by
circumstantial evidence in the common law marriage context.
In addressing the fact that the purported wife had filed a
joint income tax return with someone other than the purported
husband for some of the years in question, the Court noted
that ď[c]onsidered alone, the tax information would weigh
against the finding of a common law marriage, but the
remainder of the record sufficiently overcomes the contrary
inferences which might be drawn.Ē Winegard at 511. Other
factors mentioned by the Court as showing that a common law
marriage existed were the purported wifeís intent and belief
with respect to the relationship, opinions of various
witnesses that the community generally regarded the parties
as married, continuous cohabitation by the parties, the
denying parties acquiescence in the otherís use of his name
and her representations to the community they were in fact
married, receipt of a wedding band, hotel registrations and
travel reservations wherein the parties were listed as Mr.
and Mrs. Winegard, and other transactions in which the
parties were represented as a married couple. See, Winegard
at 511.
There have been numerous statements submitted in support of
the appellantís claim that, following their divorce, she and
the veteran resided together for many years and were
generally known as husband and wife in the community. The
appellant and one of the veteranís daughters testified that
the veteran intended and represented to the community that
the appellant was his wife. This is supported by the
overwhelming majority of the evidence of record, with the
exception of the documents submitted by the veteran to VA
concerning his eligibility for VA pension benefits. While
these documents clearly show that the veteran represented to
VA that he was not married, they also include some forms
which listed income for a spouse and one even listed the
appellantís Social Security number. While the documents
submitted to VA weigh against a finding that the veteran
intended a martial relationship with the appellant, the
overwhelming majority of the evidence of record supports a
finding that both the veteran and the appellant had the
necessary intent and agreement to be married. This intent,
along with their continuous cohabitation and public
declarations of themselves as husband and wife, met the three
requirements for a common law marriage under the law of the
State of Iowa.
Therefore, after carefully reviewing the entire record in
this case, the Board concludes that all of the requirements
under the law of the State of Iowa for a valid common law
marriage between the appellant and the veteran were met.
Additionally, the Board concludes that the requirement of
continuous cohabitation needed to establish entitlement to VA
benefits as a surviving spouse has also been met in this
case, as there is no evidence that the appellant and veteran
did not live together continuously as claimed by the
appellant. It follows that entitlement of the appellant to
recognition as the veteranís surviving spouse for purposes of
VA death benefits is in order. 38 U.S.C.A. ßß 101, 103;
38 C.F.R. ßß 3.1, 3.50, 3.205.
ORDER
Entitlement to recognition as the surviving spouse of the
veteran is established. The appeal is granted.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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